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17-SL40544-00
EQUIPMENT SCHEDULE NO. SG01
DATED AS OF SEPTEMBER 22, 2000
TO MASTER LEASE AGREEMENT DATED AS OF SEPTEMBER 22,2000 ("MASTER LEASE")
LESSEE: NEOTHERAPEUTICS, INC. LESSOR: COMDISCO LABORATORY AND SCIENTIFIC
GROUP, A DIVISION OF COMDISCO, INC.
ADDRESS FOR LEGAL NOTICES: ADDRESS FOR ALL NOTICES:
000 Xxxxxxxxxx Xxxxx 0000 Xxxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxx 00000
ATTN: Corporate Secretary Attn: Contracts Administration
ADDRESS FOR ADMINISTRATIVE CORRESPONDENCE: ADDRESS FOR INVOICES:
000 Xxxxxxxxxx Xxxxx 000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxx 00000
ATTN: Xxx Xxxxx ATTN: Xxx Xxxxx
PHONE: 949/788-6700 ext. 209
FAX: 949/
LOCATION OF EQUIPMENT: LESSEE REFERENCE NO:
--------------------------
(24 digits maximum)
000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
ATTN: Xxx Xxxxx INITIAL TERM/
PHONE: 949/788-670 ext. 209 RENT INTERVAL: 12 Quarters
LEASE RATE FACTOR: 1st Qtr @ .28
2nd-12th Qtr @ .0707
EQUIPMENT (AS DEFINED BELOW):
ITEM MACHINE MODEL/ SERIAL
NO. QTY. MFG. TYPE FEATURE DESCRIPTION NUMBER
---- ---- ---- ------- ------- ----------- ------
GROUP I EQUIPMENT: Installed Laboratory and Scientific Equipment described on
Attachment A.
GROUP II EQUIPMENT: New Laboratory and Scientific Equipment comprised of
equipment types described under Group I Equipment, which are supplied from
outside vendors.
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GROUP III EQUIPMENT: Laboratory and Scientific Equipment comprised of equipment
types described under Group I Equipment, which are supplied, from Lessor's
inventory pursuant to Section 7 hereof.
NOTICE PERIOD: The Notice Period will be not less than one hundred eighty (180)
days nor more than twelve (12) months prior to the expiration of the Initial
Term, or any extension thereof. In order for the notice to be effective, a
notification by Lessee to Lessor must be accompanied by a letter from the
manufacturer representing that when the Equipment is returned to Lessor it will
be eligible for continued maintenance by a new end user. If Xxxxxx gives proper
written notice of termination but fails to return the Equipment on the
expiration date of the Initial Term, or any extension thereof, the Schedule will
continue in full force and effect and Lessee will be required to provide an
additional sixty (60) days written notice of termination. Such termination will
be effective at the end of the quarter in which the last day of the sixty (60)
day notice requirement occurs. The Rent will continue at the current rate until
the effective date of written notice of termination and the Equipment is
properly returned.
SPECIAL TERMS: The following additional terms are a part of this Equipment
Schedule. The terms and conditions of the Master Lease Agreement as they pertain
to this Equipment Schedule are modified and amended as follows:
1. EQUIPMENT - MULTIPLE DELIVERY
It is understood that the Equipment to be leased is a combination of (i)
Equipment purchased from Lessee and leased back to Lessee ("Group I
Equipment'); (ii) Equipment purchased from the Equipment manufacturer or
retail vendor ("Group II Equipment'); and (iii) Equipment supplied from
Lessor's inventory ("Group III Equipment'). For purposes of this
Schedule the terms "Group I Equipment", "Group II Equipment" and "Group
III Equipment') are collectively referred to as the "Equipment".
Lessor's obligation to lease the Equipment under this Schedule applies
to Group I Equipment, Group II Equipment and Group III Equipment (but
not to attachments or upgrades to the Equipment, leasehold improvements,
construction costs, implementation fees, and application software fees)
up to an aggregate `purchase price of $2,500,000.00.
During the period from August 25, 2000 to January 31, 2001 ("Commitment
Period'), (a) Lessee will provide to Lessor for each item of Group H
Equipment and Group III Equipment, either Commencement Certificates or
vendor invoices approved for payment by Lessee ("Invoices"), and (b)
Lessor will make payment to Lessee for each item of Group I Equipment to
be leased hereunder.
With respect to Group I and Group H Equipment, Lessee acknowledges it is
entitled to the warranties and indemnities, remedies and limitations
provided by the Equipment manufacturer or vendor and may communicate
directly with such manufacturer or vendor to receive an accurate and
complete copy thereof. If the cost or configuration of the Equipment
changes, Lessor may adjust the Lease Rate Factors to reflect these
additional costs or related expenses.
2. COMMITMENT FEE
In consideration of Lessor entering into this Schedule with Xxxxxx,
Xxxxxx agrees to pay to Xxxxxx a commitment fee in the amount of
$11,250.00 ("Commitment Fee") based upon the aggregate purchase price of
the Equipment from Equipment Group I and 11 to be leased under this
Schedule. The Commitment Fee will be due and payable upon receipt of
Xxxxxx's invoice. Lessor will apply the Commitment Fee to the first
quarterly rental payment under each Summary Schedule for this Schedule,
and such allocation will be equal to one percent (II/o) of the total
purchase price of the Equipment leased under a Summary Schedule.
3. COMMENCEMENT DATE
The Commencement Date for each item of Group II Equipment and Group HI
Equipment will be the day on which the Equipment is installed and
qualified for a commercially available manufacturer's standard
maintenance contract or warranty coverage, if available. Xxxxxx agrees
to confirm the Commencement Date by providing Lessor with either the
Invoices containing the Equipment location, description, serial number.
and cost, the Commencement Date and Xxxxxx's signature. or a
Commencement Certificate in the form provided by Lessor, within ten (10)
days of the Commencement Date. The Commencement Date for
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each item of Group I Equipment will be the date Lessor tenders payment
of the purchase price for the Group I Equipment. Lessee will be deemed
to accept the Group H Equipment on the Commencement Date.
Notwithstanding anything to the contrary contained herein, during the
interim period from the Commencement Date through but not including the
first day of the start of the Initial Term, Xxxxxx's rental obligations
for each item of Equipment shall be equal to the daily Lease Rate Factor
of .001012% multiplied by the acquisition cost for such item of
Equipment multiplied by the number of days in the interim period.
4. SUMMARY SCHEDULE
Lessor will summarize all Invoices and/or Commencement Certificates
received for the Group II Equipment, and all payments made by Lessor for
the Group I Equipment, in the same calendar quarter into a Summary
Schedule in the form attached to this Equipment Schedule as Exhibit I.
Lessor will summarize all Commencement Certificates received for the
Group III Equipment in the same calendar quarter into a separate Summary
Schedule. The Initial Term for all items of Equipment will begin on the
first day of the calendar quarter following the Commencement Date.
Xxxxxx agrees that for administrative purposes, including without
limitation, invoicing of Rent and taxes and assignment of an identifying
lease number, Lessor may administer the Summary Schedule as if it
constituted a separate Equipment Schedule. Alternatively, if Lessor
requests Lessee to execute a Summary Schedule, Xxxxxx will have an
appropriate official of Lessee execute and promptly return the Summary
Schedule to Lessor. Executed Summary Schedules will incorporate the
terms and conditions of the Master Lease and this Equipment Schedule and
will constitute a separate Equipment Schedule.
5. ADVERSE CHANGE
If Lessee defaults or there is a material adverse change as reported by
the Lessee in an 8K filing with the Securities and Exchange Commission
("SEC'), for subsequent Summary Schedules, Lessor, at its option with
prior written notice to Lessee, will be relieved of its obligations to
lease Equipment for which Lessor has not received Invoices or
Commencement Certificates from Lessee prior to the date of such, notice.
6. INTEREST RATE ADJUSTMENT
In the event the Commencement Date for all items of Equipment to be
leased hereunder is after August 31, 2000, the following will apply. The
Lease Rate Factors set forth in this Schedule have been calculated, in
part, based on the 3-year U.S. Treasury Constant Maturity of 6.06% as
set forth in the Federal Reserve Statistical Release H. 15 ("Treasury
Rate"). If on the last Commencement Date for all items of Equipment to
be leased hereunder, there is a change in Treasury Rate in excess of 10
basis points, the effective lease rate of % will be adjusted one basis
point for each basis point change in the Treasury Rate. Additionally, if
there is an adverse change in Xxxxxx's credit standing prior to the
Commencement Date for all items of Equipment to be leased hereunder, the
Lease Rate Factors may be adjusted accordingly.
7. GROUP III EQUIPMENT - SUPPLIED FROM LESSOR'S INVENTORY
It is anticipated by Xxxxxx and Xxxxxx that at least fifty-five percent
(55%) of the acquisition cost of the Equipment to be leased hereunder
will be comprised of Group III Equipment. Lessee will provide Lessor
with a ninety (90) day forecast of proposed Equipment acquisitions, with
updates provided to Lessor every thirty (30) days. Lessor agrees it will
use commercially reasonable best efforts to supply Group III Equipment,
and Xxxxxx agrees it will use commercially reasonable best efforts to
accept Xxxxxx's offer to supply Group III Equipment hereunder. Lessor
will notify Lessee of Group III Equipment availability and the pricing
of such Group III Equipment via facsimile transmission. Lessee will
respond to Xxxxxx's offer within a reasonable time frame via facsimile
transmission by accepting or rejecting Xxxxxx's offer. If Xxxxxx's offer
is accepted, the Group III Equipment will be supplied to Lessee in
accordance with the terms of the offer and this Schedule. For purposes
of determining the Quarterly Rent for an item of Group III Equipment,
the Lease Rate Factor(s) set forth in this Schedule will be applied to
the acquisition cost of the Group III Equipment as set forth in Lessor's
offer.
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8. EQUIPMENT PROCUREMENT CHARGES (PROGRESS PAYMENTS)
It is the agreement of the parties that due to the Equipment vendor's
requirement that progress payments be paid prior to the Commencement
Date ("Progress Payments"), all terms and conditions of this Equipment
Schedule will be applicable to the Equipment except the Lessee's rental
obligations. Notwithstanding the foregoing, Xxxxxx agrees to pay Lessor
"Equipment Procurement Charges" equal to a daily lease rate factor of
.001012 multiplied by the aggregate of the Progress Payments paid by
Lessor for each day from the date Progress Payments are made by Lessor
until the Commencement Date. Lessee will authorize each Progress Payment
prior to Lessor's payment by acknowledging such approval on the face of
the invoice(s). Accrued Equipment Procurement Charges are payable within
30 days of the date of Xxxxxx's invoice.
If Lessee rejects the Equipment prior to the Commencement Date pursuant
to the purchase agreement with the Equipment vendor or if Lessee is in
default of this Equipment Schedule, then this Equipment Schedule will
terminate and Lessee will (i) reimburse Lessor for all amounts paid by
Lessor for the purchase of the Equipment and (ii) pay all Equipment
Procurement Charges due through the date of termination. Upon payment of
all amounts due and owing by Xxxxxx, Lessor will transfer to Lessee all
of Lessor's interest in the Equipment and under any purchase agreement.
9. RENEWAL OPTION (FAIR MARKET RENTAL VALUE)
So long as no Event of Default shall have occurred, Lessee shall have
the right to extend the Initial Term of this Schedule by giving Lessor
at least one hundred eighty (180) days written notice prior to the
expiration of the Initial Term, provided, however, this Schedule shall
continue in effect following the extended period until terminated by
either party upon not less than one hundred eighty (180) days prior
written notice, which notice shall be effective the first of the month
following receipt. The rent required to be paid during the extended
period shall be based on the Fair Market Rental Value of the Equipment.
Unless otherwise agreed in writing between the parties, this option
shall not apply to add-ons or upgrades to the Equipment leased
hereunder. Fair Market Rental Value shall be defined as the amount which
would be obtainable at the commencement of the extended Initial Term in
an arm's-length transaction between an informed and willing lessee/user
leasing the Equipment in place for its originally intended use for the
proposed lease term, and an informed and willing lessor/dealer under no
compulsion to lease.
10. PURCHASE OPTION (FAIR MARKET VALUE)
So long as no Event of Default shall have occurred and is continuing
hereunder, and upon at least one hundred eighty (180)days prior written
notice to Lessor, Lessee will have the option at the expiration of the
Initial Term of this Schedule to purchase all, but not less than all, of
the Equipment for an amount equal to the Fair Market Value of the
Equipment (plus any taxes applicable at time of purchase) on the date of
the expiration of the Initial Term (the "Purchase Date"), payable to
Lessor by the Purchase Date. Title to the Equipment will automatically
pass to Lessee on the Purchase Date, provided Lessee has paid the full
purchase price.
11. RETURN OPTION
In the event that Lessee does not elect the "Purchase Option" or
"Renewal Option" contained herein, Lessee will return the Equipment to
Lessor upon termination of the Schedule in accordance with the "Delivery
and Return of Equipment" provision.
12. ELECTRONIC FUNDS DEBIT AUTHORIZATION
This Equipment Schedule is contingent upon Lessee authorizing Lessor, or
Xxxxxx's assigns, to institute electronic funds transfer debit
instructions against Xxxxxx's bank account using the Automated Clearing
House funds-transfer systems in order to make payment to Lessor, or
Lessor's assigns, for any and all of Lessee's payment obligations when
due under the Master Lease Agreement and this Equipment Schedule. Xxxxxx
agrees to accurately complete, execute, and return to Lessor an
Electronic Funds Debit Authorization Agreement provided by Lessor
substantially in the form of Attachment I hereto. Lessor and Xxxxxx
agree that Xxxxxx's electronic debit amount will not exceed amount
stated on Xxxxxx's Invoice.
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13. RENT ADJUSTMENT
If Lessee fails to give the proper written notification to terminate
this Equipment Schedule, or if the Equipment has not been returned to
Lessor in accordance with the terms of the Master Lease, the Initial
Term will automatically extend on a quarter to quarter basis at a
quarterly lease rate factor .091036 until proper written notification of
termination is received by Lessor and the Equipment is returned in
accordance with the terms of the Master Lease.
14. LESSOR'S ELECTION
Lessee represents that it has paid all California sales tax due on the
cost of that portion of the Equipment to be installed in California and
agrees to provide evidence of such payment to, Lessor. As a result of
the election, Xxxxxx agrees that it will not invoice Xxxxxx for use tax
on the monthly rental payments for the Equipment. Xxxxxx understands
that this is an irrevocable election to measure the tax by the Equipment
cost and cannot be changed except prior to installation of the
Equipment.
MASTER LEASE: This Equipment Schedule is issued pursuant to the Master Lease
identified on page 1 of this Equipment Schedule. All of the terms and conditions
of the Master Lease are incorporated in and made a part of this Equipment
Schedule as if they were expressly described in this Equipment Schedule, and
this Equipment Schedule constitutes a separate lease for the Equipment. The
parties reaffirm all of the terms and conditions of the Master Lease (including,
without limitation, the representations and warranties set forth in the Master
Lease) except as modified by this Equipment Schedule. This Equipment Schedule
may not be amended or rescinded except by a writing signed by both parties.
NEOTHERAPEUTICS, INC. COMDISCO LABORATORY AND SCIENTIFIC GROUP,
as Lessee A DIVISION OF COMDISCO, INC.
as Lessor
By: By:
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Title: Title:
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Date: Date:
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CER
CLSG-ES (NML) form 07/00
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